455 F.

3d 1155

Carlos TREVIZO, Plaintiff,

Carlos Perez, Maria Del Carmen Cruz, Carmelo Cruz,
Laurentino Rodriguez, Ashley Rodriguez, Sylvia Rodriguez,
Gloria E. Villalobos, Pedro Campos, Jiverto Baptista, and
Rogelio Gomez, for themselves and on behalf of all others
similarly situated, Plaintiffs-Appellants/Cross-Appellees,
v.
Robe ADAMS, personally and in his capacity as a Salt Lake
City Police Officer, Defendant,
Salt Lake City Corporation, Dee Dee Corradini, personally and
in her capacity as Mayor of Salt Lake City, Ruben Ortega,
personally and in his capacity as Police Chief of Salt Lake City,
Melody Gray, personally and in her capacity as a Bountiful
City Police Officer, Russell Amott, James Bloomer, Amy
Despain, Tim Doubt, Wanda Gabbetas, Craig Gleason, Greg
Hagelberg, Marty Kaufman, Phil Kirk, John Ritchie, Michael
Ross, Morgan Sayes, Troy Siebert, Chad Steed, and Marty
Vuyk, personally and in their capacities as Salt Lake City
Police Officers, Defendants-Appellees/Cross-Appellants.
No. 05-4098.
No. 05-4110.

United States Court of Appeals, Tenth Circuit.

July 26, 2006.

COPYRIGHT MATERIAL OMITTED Dale F. Gardiner, Parry Anderson

& Gardiner, Salt Lake City, UT, for Plaintiffs-Appellants/CrossAppellees.
Morris O. Haggerty, Senior City Attorney, Salt Lake City Attorney's
Office, Salt Lake City, UT, for Defendants-Appellees/Cross-Appellants.
Before KELLY, TYMKOVICH, Circuit Judges and EAGAN, District

Judge.*
TYMKOVICH, Circuit Judge.

This appeal arises out of a 1983 action filed against Salt Lake City and
various individual law enforcement officers. The plaintiffs were owners,
employees, and customers of Panaderia La Diana, a Latino-owned business that
served as a combination restaurant, tortilla factory, and bakery in Salt Lake
City. The civil rights claims arise from the manner in which police executed a
search warrant of Panaderia La Diana in 1997. Thirty-three individuals initially
filed suit alleging gross improprieties from the SWAT-style police raid. They
also sought class action certification on behalf of the remaining individuals
who were subjected to the raid but failed to file suit.

After numerous pretrial delays, the district court issued a lengthy summary
judgment order in 2004, which completely disposed of the case as to ten of the
plaintiffs and partially disposed of the case as to the remaining plaintiffs. This
appeal involves the ten plaintiffs against whom complete summary judgment
was issued. They contest the district court's decision to dismiss their claims and
also challenge its prior denial of their motion for class certification.

Having jurisdiction pursuant to 28 U.S.C. 1291, we AFFIRM the decisions

below.

I. Factual and Procedural Background

4

Prior to the events that gave rise to this case, Panaderia La Diana had been
placed under surveillance by law enforcement due to numerous reports of drug
sales on the premises. As part of their investigation, undercover police
purchased cocaine and heroin from eight different persons in the parking lot
and purchased the prescription drug Darvon from an employee inside the
restaurant. The police also obtained information about potential firearms
located on the premises.

At mid-afternoon on April 24, 1997, Salt Lake City police, in conjunction with
officers from other agencies, executed a search warrant at Panaderia La Diana,
seeking evidence of the purported drug activity occurring on the property. The
warrant was executed pursuant to high risk procedure and, throughout the
course of the search, at least forty-seven SWAT members and other law
enforcement officers detained approximately eighty people. Six people were
initially arrested, including the employee who had previously sold Darvon to an

undercover officer. However, the search produced no new evidence of illegal

activity, and the charges were later dropped.
6

Nearly two years later, on March 8, 1999, thirty-three of the persons detained
by law enforcement joined in filing suit under 42 U.S.C. 1983 against Salt
Lake City and individual police officers involved in the raid.1 The plaintiffs
claimed they suffered maltreatment at the hands of law enforcement officers
and alleged a litany of horrific facts to support their claims. The allegations,
which were set out at length in the district court's thorough opinion, see
Panaderia La Diana, Inc. v. Salt Lake City Corp., 342 F.Supp.2d 1013, 101629 (D.Utah 2004), describe a wide range of physical and verbal abuse of
persons at the scene, including pregnant women and children.

On July 22, 2004, over five years after the plaintiffs filed suit, the City noticed
depositions for a number of plaintiffs for July 30, the last day of the discovery
period. On that date, for reasons that are disputed by the parties, the following
ten noticed plaintiffs failed to appear at the appointed place: Carlos Perez,
Maria Del Carmen Cruz, Carmelo Cruz, Laurentino Rodriguez, Ashley
Rodriguez, Silvia Rodriguez, Gloria E. Villalobos, Pedro Campos, Jiverto
Baptista, and Rogelio Gomez. These plaintiffs were therefore never deposed.

After discovery was closed but before the motions deadline had passed, the
plaintiffs moved for certification as a class action pursuant to Federal Rule of
Civil Procedure 23. In addition, the City moved for summary judgment
pursuant to Rule 56. The court denied the plaintiffs' request for class
certification and granted summary judgment against the ten plaintiffs who
failed to appear at their own depositions.2

These ten plaintiffs appeal the judgment entered against them as well as the
denial of class certification. The City cross-appeals the certification issue.

II. Discussion
A. Summary Judgment Against Plaintiffs
10

When a party moves for summary judgment, it will be granted if "the

pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). Plaintiffs seeking to overcome a motion for summary
judgment may not "rest on mere allegations" in their complaint but must "set

forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e) (emphasis added); see Lujan v. Nat'l Wildlife Fed'n., 497 U.S. 871, 902,
110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("[C]onclusory allegations
unsupported by specific evidence will be insufficient to establish a genuine
issue of fact.") (internal quotations omitted).
11

This does not mean that evidence must be submitted "in a form that would be
admissible at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). Indeed, parties may submit affidavits even
though affidavits are often inadmissible hearsay at trial on the theory that the
same facts may ultimately be presented at trial in an admissible form. Bryant v.
Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir.2005). However, "[t]o
determine whether genuine issues of material fact make a jury trial necessary, a
court necessarily may consider only the evidence that would be available to the
jury" in some form. Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452
F.3d 1193, 1199 (10th Cir.2006) (citing Truck Ins. Exch. v. MagneTek, Inc.,
360 F.3d 1206, 1216 (10th Cir.2004) (affirming summary judgment, in light of
the available evidence, because "[j]ury verdicts may not be based on
speculation or inadmissible evidence or be contrary to uncontested admissible
evidence")).

12

Having reviewed this issue de novo and applied the same standard as the
district court, Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709,
714 (10th Cir.2005), we come to the same conclusion that these plaintiffs
failed to "put forward any evidence in their favor" that satisfies these standards,
Panaderia, 342 F.Supp.2d at 1030. Absent deposition testimony or other
competent evidence of what occurred, it was incumbent upon these plaintiffs to
provideat the very leastaffidavits detailing what happened to them. None
of these ten plaintiffs did so. Nor, after the district court's decision alerted them
to their deficiencies, did they ask the court to reconsider its ruling and, at that
time, seek to supplement the record.

13

As it is, the plaintiffs can only argue on appeal that (1) the City never contested
their presence at Panaderia La Diana, and (2) other previously joined plaintiffs
(who had provided deposition testimony to support their own claims) made
sweeping statements about the group as a whole. However, neither physical
presence on the premises, nor vague, generalized statements from others
suggesting that "pretty much everyone was treated the same way," Applt.
Appx. at 360, is sufficient to constitute "specific facts showing there is a
genuine issue for trial as to the essential elements" of these plaintiffs' claims.
See Flight Concepts Ltd. P'ship v. Boeing Co., 38 F.3d 1152, 1156 (10th
Cir.1994). The record is particularly deficient considering the plaintiffs had

over five years to prepare their case, and summary judgment was granted only
one month before the scheduled trial in the matter.
14

Because these plaintiffs failed to meet the requirements of Rule 56, summary
judgment is appropriate. We therefore uphold the district court's decision.3

15

B. Denial of Plaintiffs' Motion for Class Certification

16

Plaintiffs also appeal on behalf of other potential claimants who were at the
restaurant during the raid but did not join the lawsuit, arguing the district court
should have certified their case as a class action. The district court initially
denied certification on the ground of untimeliness. Subsequently, however, the
court amended its prior order and denied certification based on the plaintiffs'
failure to meet two elements set forth in Rule 23numerosity and
commonality.

17

"Whether the district court applied the correct legal standard in its decision to
grant or deny class certification is reviewed de novo." Shook v. El Paso County,
386 F.3d 963, 967 (10th Cir.2004). However, "[w]hen the district court has
applied the proper standard in deciding whether to certify a class, we may
reverse that decision only for an abuse of discretion." Id.
1. Timeliness

18

This lawsuit had been pending for five years before the plaintiffs moved for
class certification. They filed at the latest possible opportunitythe final day of
the motions period. At that point, discovery had already closed and a two-week
jury trial was just over two months away. Because granting certification at that
point would have resulted in extending the motions period, reopening
discovery, and rescheduling trial, the district court rejected the motion for
untimeliness, finding it to be unfair to the defense and impracticable for the
court. The court based its decision on Federal Rule of Civil Procedure 23(c)(1),
which states, "When a person sues or is sued as a representative of a class, the
court mustat an early practicable timedetermine by order whether to
certify the action as a class action." (emphasis added).

19

Subsequently, however, realizing that this circuit interprets Rule 23(c)(1) to

require the trial court to "take up class action status" in a timely manner
"whether requested to do so or not by a party or parties, where it is an element
of the case." Horn v. Assoc. Wholesale Grocers, Inc., 555 F.2d 270, 274 (10th
Cir.1977) (emphasis added), the district court amended its order and provided

additional reasoning on the merits of the certification request. In its revised

order, the district court concluded Rule 23(c)(1) was not intended to create a
basis for automatic denial of a party's request for class certification.
20

We agree with the district court on this point. As we explained in Horn, Rule
23(c)(1) places the onus on the court to make a determination irrespective of
whether the parties have requested class action status. Therefore, it does not
create an independent basis for denying a party's motion. Nor do the 2003
amendments to this Rule alter our analysis. Neither the language itself, which
was changed from "as soon as practicable" to "at an early practical time," nor
the accompanying Advisory Committee Notes provide a reason to disturb our
precedent on this issue.4 Accordingly, we turn to the district court's subsequent
evaluation of the plaintiffs' request based on the requirements specifically set
forth in Rule 23.
2. Prerequisites to Class Certification

21

A class may be certified only if all four of the following prerequisites are met:

22

(1) Numerosity: "the class is so numerous that joinder of all members is

impracticable";

23

(2) Commonality: "there are questions of law or fact that are common to the
class"; (3) Typicality: "the claims or defenses of the representative parties are
typical of the claims or defenses of the class"; and

24

(4) Adequacy of representation: "the representative parties will fairly and

adequately represent the interests of the class."

25

Fed.R.Civ.P. 23(a). A party seeking class certification must show "under a

strict burden of proof" that all four requirements are clearly met. Reed v.
Bowen, 849 F.2d 1307, 1309 (10th Cir.1988).

26

In its amended order, the district court denied the motion based on the first and
second elementsnumerosity and commonality. The plaintiffs challenge the
court's determination on each of these elements.

27

Numerosity. In order to meet this element, "[t]he burden is upon plaintiffs

seeking to represent a class to establish that the class is so numerous as to make
joinder impracticable." Peterson v. Okla. City Housing Auth., 545 F.2d 1270,

1273 (10th Cir.1976). Here, the district court concluded that, although the
number of putative class memberseighty-four was not insignificant, it was
not such an overwhelmingly large number as to be prohibitive of joinder. Nor
was there any problem locating the remaining individuals for joinder since all
the names and addresses of potential plaintiffs had been provided during
discovery.
28

The plaintiffs argue that the district court should have followed cases from
other jurisdictions which hold numerosity may be presumed at a certain
number. See Consol. Rail Corp. v. Hyde Park, 47 F.3d 473, 483 (2d Cir.1995)
(presuming numerosity at forty members); see also Polich v. Burlington
Northern, Inc., 116 F.R.D. 258, 261 (D.Mont.1987) (finding sixty potential
members sufficient to support a presumption that joinder was not practicable).
Our circuit has never adopted such a presumption. To the contrary, we have
specifically stated there is "no set formula to determine if the class is so
numerous that it should be so certified." Rex v. Owens ex rel. State of Okla.,
585 F.2d 432, 436 (10th Cir.1978). Indeed, because it is such a fact-specific
inquiry, we grant wide latitude to the district court in making this
determination. Johnson by Johnson v. Thompson, 971 F.2d 1487, 1498 (10th
Cir. 1992). Here, the district court carefully reviewed the record and made an
appropriate judgment call. We therefore find no abuse of discretion.

29

Plaintiffs argue in the alternative that joinder would be impracticable in their

case based on the unique circumstances of the putative class. According to the
current plaintiffs, the remaining potential class members may be deterred from
joining the litigation as named plaintiffs because (1) their English was limited,
and (2) they were fearful of the legal system. The district court found this
argument unpersuasive, noting that many of the named plaintiffs also spoke
little or no English, yet they had managed to file claims. Further, the court
found the plaintiffs had failed to demonstrate any factual basis for concluding
the remaining individuals were deterred from filing claims based on some
unique fear of the legal system. The only indication submitted was a vague and
conclusory affidavit by one plaintiff that purported to describe the motives of
others. The district court found the solitary affidavit inadequate to support the
serious allegations underlying the argument, especially since the plaintiffs had
access to the other individuals yet took no steps to obtain specific facts relevant
to their reasons for not suing the City. In any event, even if the class were
certified, the remaining individuals would eventually have had to come forward
to join the class irrespective of their views about the judicial process.

30

In sum, we cannot conclude the district court abused its discretion in finding
that joinder was practical and that the potential class members could have filed

individual claims against the City.

31

Commonality. In the principal case on Rule 23(a) commonality, General

Telephone Company of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct.
2364, 72 L.Ed.2d 740 (1982), the Supreme Court held members of a putative
class must "possess the same interest and suffer the same injury." In that case,
the Supreme Court denied class certification to a group of Mexican-Americans
pursuing similar Title VII claims on the basis that they had failed to provide a
"specific presentation identifying the questions of law or fact that were
common." Id. at 158, 102 S.Ct. 2364. The Court emphasized the necessity of
rigorous analysis by the district court before granting class certification because
of the "potential unfairness to the class members bound by the judgment if the
framing of the class is overbroad." Id. at 161, 102 S.Ct. 2364.

32

"The district court retains discretion to determine commonality because it is `in

the best position to determine the facts of the case, to appreciate the
consequences of alternative methods of resolving the issues of the case and . . .
to select the most efficient method for their resolution.'" J.B. ex rel. Hart v.
Valdez, 186 F.3d 1280, 1289 (10th Cir.1999) (quoting Boughton v. Cotter
Corp., 65 F.3d 823, 825 (10th Cir.1995)). "Whether a case should be allowed
to proceed as a class action involves intensely practical considerations, most of
which are purely factual or fact-intensive. Each case must be decided on its
own facts, on the basis of `practicalities and prudential considerations.'"
Monreal v. Potter, 367 F.3d 1224, 1238 (10th Cir. 2004) (quoting Reed, 849
F.2d at 1309 (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388,
402-03, 406 n. 11, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980))).

33

Here, in examining the facts of the case, the district court determined the
plaintiffs presented "divergent fact patterns which ma[d]e this case
inappropriate for class action status." Dist. Ct. Order, Nov. 2, 2004, at 5.
Specifically, the court observed,

34

The jury's determination of reasonableness [which is central to these plaintiffs'

claims] will rely on numerous factors which differ significantly as to many
plaintiffs such as (1) how long the plaintiffs were detained; (2) where the
plaintiffs were detained; (3) whether the plaintiff is an owner, employer,
customer, or bystander, and (4) the degree of force used with each plaintiff,
among many others. It seems clear to the court that the jury may award
damages to some of the plaintiffs but find that others are not entitled to
damages.

35

Id.

35
36

Id.
In light of the district court's thorough examination of the relevant facts, and
acknowledging the court's broad discretion in assessing commonality, we
conclude it did not abuse its discretion in determining the essential element of
commonality was not met.5

III. Conclusion
37

For the foregoing reasons, we AFFIRM the decisions below.

Notes:
*

Honorable Claire V. Eagan, Chief District Court Judge, Northern District of

Oklahoma

We refer to these defendants collectively as "the City."

As noted above, the court also entered summary judgment against the
remaining plaintiffs on certain claims. These plaintiffs did not appeal the
decision and settled their remaining claims

Because we affirm on this ground, we need not reach the district court's
alternative reason for dismissing these plaintiffs' casethat default judgment
was warranted as a Rule 37 sanction for failure to appear at their scheduled
depositions

The City also argues that, even if Rule 23(c)(1) does not create an independent
basis for denying a party's motion, timeliness nonetheless remains relevant
under the court's determination of whether the representative parties will
adequately represent the interests of the class pursuant to Rule 23(a)(4). The
Supreme Court has recognized that plaintiffs' failure to move for class
certificationprior to trial is a strong indication they would not "fairly and
adequately protect the interests of the class." E. Tex. Motor Freight Sys., Inc. v.
Rodriguez, 431 U.S. 395, 404-05, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977).
Because we do not reach the issue of Rule 23(a)(4)'s application (see below),
we need not consider whether to extend the Rodriguez logic to the facts of this
case.

The City also argues the district court should have denied certification on the
fourth elementadequacy of representation. Because we hold the district court
did not abuse its discretion in denying class certification based on numerosity

and commonality, and because either or both of those elements are sufficient to
support its decision, we need not explore additional reasons not relied upon
below